D (A Child), Re

Under Part 2 of the Human Fertilisation and Embryology Act 2008, legal parenthood in an international surrogacy case depends on the statutory rules, not on registration in a foreign birth certificate or on social, psychological or genetic parenthood alone.

The surrogate is the legal mother under section 33. Under section 35, the legal father depends on whether the surrogate was married at the relevant time. That question must be determined on the balance of probabilities. Where the evidence is contradictory, incomplete and insufficient to establish marriage, the court cannot treat the commissioning father as the legal father under the Act.

The proceedings concerned D, a child born in Georgia in 2010 following a commercial surrogacy arrangement. The egg was provided by a donor and the First Respondent’s sperm was used. The Applicant and First Respondent were registered as D’s parents in Georgia and were his social and psychological parents.

The court had to determine whether the surrogate mother was married when the embryo or sperm and eggs were placed in her. That issue was decisive under sections 33 and 35 of the Human Fertilisation and Embryology Act 2008. Attempts to locate the surrogate and obtain direct evidence from the clinic director had failed, and the available evidence was inconsistent.

The parties had agreed arrangements concerning D’s care, including wardship and shared residence. The central issue was whether the evidence established the surrogate’s marital status on the balance of probabilities.

1. The court held that the evidence did not establish, on the balance of probabilities, that the surrogate mother was married at the relevant time. The evidence from the clinic director was inconsistent, the director had refused to provide a statement, and the surrogate could not be located.

2. Under section 33 of the Human Fertilisation and Embryology Act 2008, the woman who carries or has carried the child through surrogacy is treated as the legal mother, whether the surrogacy occurred in the United Kingdom or elsewhere.

3. Under section 35, the question whether the commissioning father is treated as the legal father depends on the surrogate having been married at the relevant time, subject to the statutory provisions concerning consent. The fact that the commissioning parties were recorded as parents on the Georgian birth certificate did not determine legal parenthood in English law.

4. The court distinguished genetic, gestational, social and psychological parenthood from legal parenthood, adopting the framework described by Baroness Hale in Re G (Children) [2006] 2 FLR 629.

5. The court approved and made the parties’ agreed orders concerning D, including that he should remain a ward of court and that there should be a shared residence order. The structure followed that made in JP v LP & Ors [2014] EWHC 595 (Fam). The orders were considered consistent with and promotive of D’s welfare, which was the court’s paramount consideration under section 1 of the Children Act 1989.